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[*1]


Decided on March 7, 2007
Supreme Court, Bronx County

227/92
Richard L. Price, J.
On March 12, 1993, defendant was convicted, upon a jury verdict, of robbery in the second degree (PL 160.10[2][b]) and sexual abuse in the first degree (PL 130.65[1]). Defendant was sentenced, as a second felony offender, to consecutive terms of seven to fourteen years and three to six years, respectively (Eggert, J.). By motion submitted on December 11, 2006, defendant moves pro se to vacate his conviction pursuant to CPL 440.10(1)(b)(h).
Factual and Procedural Background
On January 2, 1992 at about 3:00 p.m.,defendant and another approached complainant Beverly R. on Wood Avenue in the Bronx and demanded her wallet and cash. Defendant took the complainant's cash, a purse with several credit cards, a driver's license, a school identification card, an ATM card, a shopping bag from Macy's Department Store containing a pair of children's shoes, a child's coat in a smaller Macy's bag, and a receipt for those items.
Later that day, defendant was arrested and issued a summons for possessing an imitation handgun following the stop of a livery cab in which he was passenger. The police recovered a purse containing identification and credit cards belonging to the complainant and a shopping bag from
Macy's Department Store with a pair of shoes, a coat, and receipts in the complainant's name.[FN1] After contacting the complainant by phone, the police learned that defendant had robbed and sexually abused her earlier that day.
During the trial, the People introduced the coat and the complainant's identification and credit cards. The complainant testified that the police returned the shopping bag, shoes and receipts to her before trial.
The jury convicted defendant of robbery in the second degree and sexual abuse in the first degree. On March 12, 1993, defendant was sentenced to two consecutive terms of seven to [*2]fourteen years and three to six years, respectively.
On appeal, the judgment of conviction was affirmed (see People v Cheek, 216 AD2d 254 [1st Dept. 1995]). The Appellate Division found that there was probable cause to arrest defendant for possession of an imitation pistol and reasonable suspicion to detain him for further investigation after discovering that his wife's name was not the name on the credit cards and receipts that spilled out of the shopping bag when he exited the cab. The Court also found that the police had probable cause to arrest defendant for robbery after they contacted the complainant and learned that she had been robbed earlier that day.
On August 28, 1995, defendant was denied leave to appeal to the Court of Appeals (see People v Cheek, 86 NY2d 292 [1995]).
By pro se papers dated August 26, 1997, defendant petitioned the First Department for a writ of error coram nobis. Defendant raised the following claims:
(a)
Appellate counsel's failure to raise an obvious meritorious issue, deprived petitioner or [sic] of his constitutional right to effective assistance of appellate counsel. Prosecution failed to turn over Officer Reass' "Stop and Frisk Report" and the court failed to make the "proper inquiry" about the

missing "Rosario" material.

(b)
Appellate counsel [sic] failure to raise obvious meritorious issue deprived petitioner of his constitutional right to effective assistance of counsel. Petitioner was deprived of a fair trial when the prosecution released stolen property without serving the defense with a "notice of request." The evidence was exculpatory and discoverable "Brady" material.


In response to defendant's petition for a writ of error coram nobis, the People stated that there was no Rosario violation because Officer Reass did not fill out a "Stop and Frisk Report" in the
[FN2]
case.
On March 5, 1998, the Appellate Division, First Department, denied defendant's petition for a writ of coram nobis (see People v Cheek, 248 AD2d 1034 [1st Dept. 1998]).
Defendant now moves for an order vacating his conviction pursuant to CPL 440.10 on three grounds. Defendant first argues that it was improper to arrest him based upon his possession of an imitation pistol because he was actually in possession of an inoperable pellet gun, which is not unlawful under Penal Law

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